The United States Law Week

Judges Weigh Abortion ‘Gag Rule’ Harm for People or Government (1)

Sept. 23, 2019, 9:58 PMUpdated: Sept. 23, 2019, 10:44 PM

U.S. appeals court judges wrestled with whether to block the Trump administration’s abortion “gag rule” even though the Supreme Court previously found similar requirements for a family planning program constitutional.

“Why would we be free to adopt a different conclusion?” Judge Milan Smith, a George W. Bush appointee, asked about the high court’s 1991 decision on a similar regulation in Rust v. Sullivan.

The questioning occurred during an oral argument before a full panel of 11 judges on the U.S. Court of Appeals for the Ninth Circuit in San Francisco Sept. 23.

Federally funded family planning service providers and attorneys general in 22 states and the District of Columbia asked the full court to revisit a June 20 decision from three judges on the appeals court that effectively allowed the administration’s abortion rule to go into effect. The three-judge panel put a stay on district court orders that blocked the administration from enforcing its so-called abortion “gag rule.”

The rule prohibits heath-care providers that receive federal grant money for family-planning services from giving abortion referrals. It also forces family planning providers to physically and financially separate their abortion services from other reproductive care activities. The grant program is authorized by Title X of the Public Health Service Act.

Though Rust v. Sullivan centered on a different regulation, Smith said the issues it dealt with were largely the same.

“Aren’t we bound by what the Supreme Court said with respect to those issues?” he asked.

Irreparable Harm

Opponents say the rule causes irreparable harm and that providers are already being forced out of a program that millions of low-income patients depend on for contraceptive care, pregnancy tests, and counseling.

But Judge Consuelo Callahan, a George W. Bush appointee, asked about the harm the government suffers from not being able to enforce its rule.

“Isn’t it a hardship to the government if they can’t implement a program that is constitutional?” she asked. “It’s always easy when balancing hardships when you see faces and can attach it to people, but when you look at the government, if the government can never institute policies that are constitutional or legal, you can’t run a government. Can’t that be irreparable harm too?”

The June 20 decision has allowed the rule to be in effect while the government appeals nationwide preliminary injunctions issued by district courts in Oregon and Washington, along with a separate preliminary injunction from a district court in California that blocked the rule in that state only.

The preliminary injunction is only keeping in place the very same regulations that have governed the Title X program for decades, Benjamin Gutman, the Oregon solicitor general said.

“There’s no need for any new rules to come into effect before they can be judicially reviewed,” he said.

But the counterargument is that polices change when administrations change, Callahan said.

“I guess that’s what they call ‘elections have consequences,’” she said. “If it’s constitutional, if it’s legal, then they can change policies.”

Judges also questioned whether they can and should consider the impact that the rule has already had on the program.

“Are we allowed to take into account the number of people who, based on news reports, have in fact left the Title X program because of what they believe the requirements of Title X are?” Smith asked.

The federal government’s attorney, Brinton Lucas, said only 18 grantees out of 90 have left the program so far. If the rule were a clear violation of medical ethics, as the challengers claim, you’d expect to see a mass departure from the program, but that hasn’t happened, he said.

‘Non-Directive’ Counseling

The federal government argues the Public Health Services Act explicitly states Title X funds cannot be used in programs where abortion is a method of family planning.

But states and providers say the Affordable Care Act prohibits the health and human services secretary from issuing any regulation that interferes with provider-patient communications or impedes access to care, and that Congress has mandated in every spending bill since 1996 that Title X pregnancy counseling be “non-directive.”

“Why is the government going to such great lengths to distinguish counseling from referrals if you don’t think your argument depends on it?” Judge Kim Wardlaw, a Clinton appointee, asked Deputy Assistant Attorney General Hashim Mooppan.

“The statute at issue requires non-directive counseling,” Mooppan said. “Our point is this isn’t counseling. It’s referrals and it’s not directive.”

But Judge Richard Paez, a Clinton appointee, wanted to know if counseling includes referrals.

“Referrals can occur during counseling, but that does not mean they are one in the same. They are distinct activities, ”Mooppan explained as Paez rubbed his forehand, seemingly confused.

Two of the three appeals court judges who stayed the preliminary injunctions on June 20—Judges Edward Leavy and Callahan—were part of the full court that sat for arguments Sept 23. Of the 11 judges on the panel, seven were appointed by Republican presidents.

The case is California v. Azar, 9th Cir., No. 19-15974, 9/23/19.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com

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